The Ninth U.S.
Circuit Court of Appeals Wednesday rejected challenges to Proposition 14, which
established the “Top Two” election system used after the 2010 elections, and
the measure’s implementing legislation.

Senior U.S.
District Judge James G. Carr of the Northern District of Ohio, sitting by
designation, said there is no constitutional impediment to requiring candidates
to list themselves as preferring a qualified political party, or as having “No
Party Preference,” or to be listed without any statement about party preference
at all.

The Elections
Code has since been amended to eliminate the blank-space option, so that all
candidates are listed either by party or as “No Party Preference.”

Proposition 14
replaced the state’s closed partisan primary election with an open primary in
which the top two vote-getters, regardless of party, qualify for the general
election.

One of the
plaintiffs in the consolidated appeals decided Wednesday was Michael Chamness,
a former congressional candidate who said he was forced to be listed as “No
Party Preference” because election officials refused his request to be listed
as “Independent.” This proposed “self-designation,” Carr explained, was
rejected because Independent is not the name of a qualified political party.

There are
currently seven qualified political parties in California—Democratic,
Republican, American Independent, Libertarian, Peace and Freedom, Green, and
Americans Elect.

The appellate
jurist agreed with U.S. District Judge Otis Wright of the Central District of
California, who denied Chamness an injunction that would have allowed him to
run with his chosen designation.

Carr said the
law does not place a substantial burden on constitutional rights, because there
is no significant difference between “Independent” and “No Party Preference.”
Because there is not a substantial burden, he explained, strict scrutiny does
not apply and the law must be upheld if the restriction on the candidate’s
rights is rational, non-discriminatory, and supported by a substantial state
interest.

The state does
have such an interest, the judge said, in limiting the number and types of
designations by which a candidate may be listed.

CitingTimmons v. Twin
Cities Area New Party(1997) 520 U.S. 351, which upheld a
Minnesota law prohibiting multiple parties from nominating the same candidate,
Carr explained:

“If the state
were to allow Chamness to use the term ‘Independent,’ various candidates could
then seek to place other designations on the ballot in lieu of a party
preference. Those self-designations might, for example, indicate specific
political ideologies, or the absence thereof, [citing Timmons examples
of the ‘No New Taxes’ or ‘Stop Crime Now’ parties]. Or candidates could propose
designations containing language or messages inappropriate for ballots, such as
those containing profanity or promoting racism or sexism. Limiting the ballot
designations to political parties, a prescribed term (“No Party Preference”),
or a blank space avoids both the problem of allowing questionable
self-designation and the alternative prospect of having to make case-by-case
governmental decisions regarding the acceptability of various
self-designations.”

Carr rejected as
moot a separate challenge to the law, by a voter and a former would-be write-in
candidate in a 2011 special election for the state Senate who argued that
California law impermissibly allowed voters to cast write-in votes in top-two
general elections, but prohibited the counting of those votes.

Assuming that
was true at the time suit was filed, it is not true now, because an amendment
to the Elections Code expressly bars write-in votes in top-two general
elections, although they are permitted in primaries, Carr said. The U.S.
Supreme Court, he noted, has upheld the right of a state to bar write-in votes in
general elections.